Calcutta High Court
Commissioner Of Income-Tax vs Anandilal Poddar And Sons Ltd. on 25 July, 2005
Equivalent citations: (2005)199CTR(CAL)539, [2005]279ITR104(CAL)
Bench: D.K. Seth, Maharaj Sinha
JUDGMENT
1. It is pointed out that this appeal covers two assessment years. The court fee paid is to be accepted in respect of the first assessment year. The appellant shall put in additional court fee for the second assessment year within a period of eight weeks. In default, the appeal shall be treated as against the assessment year 1991-92 and so far as the assessment year 1995-96 is concerned, the same shall stand dismissed in default of putting in the deficit court fees within the period stipulated above.
2. Appeal under Section 260A of the Income-tax Act: Application of the Limitation Act: Whether excluded:
3. This is an application under Section 5 of the Limitation Act for condonation of delay in preferring the appeal by the Department by 137 days. Learned counsel for the respondent took a novel point, that Section 5 of the Limitation Act has no manner of application in an appeal under Section 260A of the Income-tax Act, 1961, in view of the provisions contained in Section 29 of the Limitation Act, 1963. According to him, the Income-tax Act is admittedly a special Act. A special period of limitation has been prescribed in Sub-section (2) of Section 260A. In the absence of any specific provision referring to the Limitation Act, though Sub-section (7) refers to the Code of Civil Procedure, the appeals under which are governed by Article 116 of the Limitation Act, then by necessary implication the application of Sections 4 to 24 of the Limitation Act is excluded. He relied on the decision in Union of India v. Popular Construction Co. . In the said decision referring to Hukumdev Narain Yadav v. Lalit Narain Mishra , it was held that it is not essential for the special or local law to, in terms, exclude the provisions of the Limitation Act. It is sufficient, if on a consideration of the language of its provisions relating to limitation the intention to exclude can be necessarily implied. Learned counsel for the respondent attempted to explain that Section 260A having not provided for condonation of delay, as is provided in Section 256(1), by necessary implication has excluded the application of Sections 4 to 24 of the Limitation Act, being hit by Section 29 of that Act.
4. Learned counsel for the appellant, on the other hand, contends that there is nothing to indicate that the application of the Limitation Act is excluded except providing a special limitation. According to him, the application of Sections 4 to 24 is to be excluded expressly and such express exclusion can be inferred from the scheme of the statute even by necessary implication. But the statute nowhere necessarily implies the exclusion of the application of Sections 4 to 24 of the Limitation Act.
5. Admittedly, the Income-tax Act is a special Act. It expressly provides in Section 260A for a period of limitation for preferring an appeal to the High Court, which is 120 days. But the reference to Article 116 of the Limitation Act is wholly misplaced since the limitation provided therein applies to an appeal provided under the Code of Civil Procedure. This period is substituted in respect of an appeal under Section 260A by the period prescribed in Clause (a) of Sub-section (2) thereof. This special period of limitation will prevail over and exclude the period provided in the Limitation Act for preferring appeal. This prescription of the special period, however, does not necessarily imply that the application of Sections 4 to 24 is excluded. In order to exclude the application of Sections 4 to 24 within the meaning of Section 29 of the Limitation Act, the exclusion must be express and such express exclusion is to be inferred by necessary implication from the statute itself. When the statute is silent and does not even by implication express that Sections 4 to 24 would not apply, then the court is not supposed to presume exclusion on account of the statute being silent in that aspect.
6. Sub-section (2) of Section 29 makes it clear that if a period prescribed in the special statute is different from that prescribed in the Limitation Act, the period provided in the Limitation Act shall be subject to the special period prescribed by the special statute and the provisions contained in Sections 4 to 24 would apply on the basis of such special period so prescribed in so far as and to the extent to which they are not expressly excluded by such special law.
7. It appears that under Section 256(1), a period has been provided together with a power to condone the delay within a limited period as prescribed in the proviso to Section 256(1). This was done in view of the fact that the Limitation Act had no manner of application before the Tribunal before whom an application for reference under Section 256(1) is to be made. But when it incorporated the provisions for reference to the High Court under Sub-section (2), it had only provided the period within which such an application is to be made, remaining silent with regard to the question of exclusion of the application of Sections 4 to 24. At the same time, Section 260A while providing for special period of limitation, in Sub-section (2), the statute remains silent with regard to the question that by necessary implication the application of Sections 4 to 24 is excluded, the court is not supposed to presume such exclusion, particularly, when there is nothing to hold that the provisions of Section 260A are hit by Section 29(2) of the Limitation Act or that the application of Sections 4 to 24 is expressly excluded or even by necessary implication.
8. Therefore, we are unable to agree with the contention raised by Mr. Murarka, learned counsel for the respondent, that Section 5 has no manner of application in respect of an appeal preferred under Section 260A.
On the merits:
9. Having heard learned counsel for the parties, we find on the merits that the delay has been sufficiently-explained. The delay, therefore, is condoned.
10. Let the appeal be listed for admission after a week. Let a copy of the memorandum of appeal be served upon learned counsel for the respondent in respect of both the assessment years.
11. However, on the merits, learned counsel for the respondent pointed out that the delay has not been properly explained and there are time gaps. Learned counsel for the appellant, however, pointed out that the delay has since been properly explained and there seems to be no time gap.
12. No order is passed as to costs.
13. All parties are to act on a signed xerox copy of this dictated order on the usual undertaking.